Common law environmental protection: the future of private nuisance, Part I

• Author: Robert Charles Palmer
• Position: Bristol Law School, The University of the West of England, Bristol, UK

Introduction

The English common law of nuisance has always engaged with environmental problems, and is indeed among the earliest forums for environmental protection the world has known. In the medieval case of Dalby v. Berch¹, the claimant was awarded damages for pollution that had, amongst others things, rendered his house uninhabitable (as a result of noxious gases from the defendant's lime-kiln). In the early modern case of Jones v. Powell², noxious vapours were again the subject of a successful nuisance action; this time compensation was granted following a brewery burning sea-coal to an extent that inhabitants were “deprived of their health” (and some chattels destroyed)³. This trend of common law environmental protection continued throughout actions on the case for nuisance and more recently, following nineteenth century developments regarding remedies for an actionable nuisance, claimants have used the common law to obtain injunctions prohibiting noxious activities, including those of large-scale public and private corporate enterprises⁴.

One of the main difficulties facing the modern tort as a “tool” for environmental protection is that increasingly potentially polluting corporate enterprises are regulated by unsatisfactory statutory regimes. The location of potentially polluting land use is the subject of planning laws and regulations that are generally dictated by committees of local planning authorities⁵. The manner in which those permitted activities are carried out in “operational” terms – in relation to technology and techniques – is the subject of various environmental laws. Those are administered by the Environment Agency for England and Wales and other specialist regulatory bodies. In many instances the situation is arguably too convoluted making a common law alternative to redress somewhat more attractive to a number of potential litigants.

Sometimes however, Parliament has made it clear that statutes curtail common law rights⁶. This has raised concerns that private nuisance could theoretically be extinguished, thus inhibiting individuals from redress under established principles of English common law⁷. On the other hand, in Barr v. Biffa Waste⁸, Lord Justice Carnwath refused to limit common law nuisance with reference to statutory regulatory controls in the absence of a clear indication from Parliament that cutting down the common law was what the legislature intended⁹. In Biffa, it was held that the claimants had a remedy for a nuisance occasioned by smells from the defendant's landfill site, notwithstanding that it had the benefit of planning permission pursuant to the Town and Country Planning Act 1990¹⁰. In essence Carnwarth LJ took a methodical juridical approach using conventional and established principles of the law of nuisance in recognition that the “common law is at its best when it is simple” – a notion this author fully advocates, particularly in the context of private nuisance.

Both this article and Part II (in the next edition of this two-part special edition on environmental law) are concerned primarily with issues relating to the environment that the common law – through nuisance – has protected over the course of nearly a thousand years. Whilst this means there is an instrumentalist approach to the research that argues private nuisance is, in essence, an environmental tort, it does not work uncritically within the framework of the traditional economic efficiency model adopted to analyse the practical purpose of the tort; rather it examines nuisance law to reflect on its environmental efficacy. To a degree economists argue that government regulation acts as the antithesis to economic growth (and the growth economy) thus represents a wholesale alternative to regulation. Many economists would clearly prefer common law regulation over government control, which perhaps explains why private nuisance has “enjoyed” a significant amount of attention from the economist¹¹. This article has a clear ambit to move away from such analysis and looks beyond its perceived role as a market-oriented alternative to regulation, thus as a private law outside the confines of the surrounding regulatory framework that common law nuisance preceded. When the tort is explored as the precursor to government controlled legal mechanisms its simplest form – in line with Carnwath LJ's observation – is exposed.

This article and Part II thus examine the future of the nuisance law in the field of environmental protection in accord with and in light of the ruling in Barr v. Biffa¹². The concern here is not with the relationship between nuisance law and regulatory law, which is well covered in the literature (for instance, Arvind and Steele's collection “Tort Law and the Legislature” is both concise and topical¹³): little of substance can be added at this juncture. It is nonetheless noteworthy that the statutory regime is often criticised for failing to deal effectively with environmental protection: Higgins (2010, p. 131) goes as far to say that modern-day statutory legal mechanisms have not only failed to solve the problem but have served to escalate matters. Indeed, a number of commentators have identified that private nuisance functions as an additional “access point” to the courts to challenge decision-makers, or as “reserve option” when statutory regulation fails to effect adequate environmental protection ( Steele, 1995, pp. 236-259 ; Lee, 2003, pp. 298-325 ). Clearly nuisance law has a part to play amongst maligned environmental regulation nonetheless it is advocated here that nuisance also has an exclusive role to play in environmental protection – it did after all dictate the manner in which man used and exploited land for centuries prior to legislative control.

Therefore, accepting the assumption that today nuisance law co-exists alongside regulatory law (as per Carnwath LJ's analysis in Biffa), the article tackles current doctrinal obstacles that case law places in the way of the common law, whilst fully realising its potential as a property-based remedy for environmental harm. In this vein, Professor Conor Gearty observed there is “nothing better in common law” in the battle against pollution than private nuisance ( Gearty, 1989, pp. 214-242 ). In light of these observations and Carnwath LJ's analysis, three areas of doctrine are examined over both articles, namely: what interests in land are protected, with specific reference to the actionability of “personal injury” (Part I); what part, if any, “fault” and reasonable foreseeability play in a defendant's liability; and, in what circumstances will a court exercise its discretion to withhold an injunction and award damages in lieu (Part II).

It is posited in Part II that in at least one of these doctrinal contexts (the award of an injunction virtually as of right ( Buckley, 1981, pp. 212 and 214 )), the courts have been willing to ensure that the common law fulfils its potential, thus signifying a bright future for common law environmental protection through private nuisance, but the overall the picture is quite mixed. In relation to actionability and fault, the law is less favourable to the claimant than it has been at certain points in its near thousand year history but the case law surrounding those issues and the enduring protean nature of private nuisance suggests the law is unresolved. The suggestion advanced in that article is that the case law may not withstand a challenge before the Supreme Court, should one be forthcoming in future. Indeed, if the doctrinal issues surrounding both actionability of personal injury (dealt with below) and fault and foreseeability (in the next issue) are grounded more accurately in precedent – in nuisance's simple reciprocal, strict liability self – then nuisance law will provide a more robust tool for environmental protection.

In the seminal case of Tipping¹⁴ the “theory of nuisance” advanced stated the law of private nuisance “did not tolerate any injury to health and property of another”. Mr Justice Mellor's direction to the jury in Tipping went thus:

I tell you that if a man by an act – either by the erection of lime-kiln, or brick-kiln, or copper works, or any works of that description – sends over his neighbour's land that which is noxious and hurtful to an extent which sensibly diminished the comfort and value of the property, and the comfort of existence on the property, that is an actionable injury ( Simpson, 2001, p. 187 ).

That direction is indicative that the Lords viewed any such interference as imposing strict liability on the defendant but the recent law is at odds with that stance challenging both the measure of actionability and whether liability is strict. The issue of strict liability is considered in the context of fault and reasonable foreseeability in Part II: this article is concerned with the measure of actionability. Tipping remains the lead case concerning physical damage in nuisance; it is argued here that at the essence of the judgment was that both physical damage to land and person constituted an actionable nuisance. Indeed, according to Tipping – and as recognised in Biffa – nuisance is a tort concerning interference with the rights of property, the focus being on the nature and extent of the interference. Regardless the Court of Appeal opined in one recent case that “personal injury” is not actionable in private nuisance¹⁵: it is suggested hereinafter that there is very little authority in support of personal injury not being actionable, in fact an investigation into the tort's development advocates “bodily security” is fundamentally a protected interest.

Actionability and the balancing of interests

The composition of PH...